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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Gene A. Fricke ) EB-04-BS-085
)
) NAL/Acct. No.
Nashua, New Hampshire ) 200632260001
)
FRN No. 0014204622
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: 1/26/2006
By the District Director, Boston Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Gene A. Fricke (``Fricke''), the
owner/operator of a Citizens Band (``CB'') radio station in
Nashua, New Hampshire, apparently willfully violated Section
301 of the Communications Act of 1934, as amended (``Act''),1
by operating a CB radio station without Commission
authorization. We conclude, pursuant to Section 503(b) of the
Act,2 that Fricke is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On July 6, 2005, in response to complaints regarding
Fricke's CB station, agents from the Boston Office monitored CB
radio operations in the Nashua, New Hampshire area.3 Using
direction-finding equipment, the agents determined that a
signal emitting a constant carrier on the frequency 27.195 MHz
was emanating from Fricke's residence. The agents conducted an
inspection of Fricke's CB station and found three CB
transmitters that were set up and connected to outdoor antennas
on Fricke's residence. By conducting on/off tests, the agents
confirmed that one of the transmitters was emitting a one-way
communication in the form of a constant carrier on the
frequency 27.195 MHz, a frequency that is not authorized for
use by CB stations. The agents further determined that the
other two transmitters set up in Fricke's residence were
capable of operating in excess of the four-watt power
limitations. One measured ten watts, the other measured eight
watts.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.4
4. Section 301 of the Act requires that no person shall
use or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States
except under and in accordance with the Act and with a
license.5 Individual licenses are not required to operate CB
radio stations. Section 95.404 of the Rules provides a blanket
authorization to all CB users, provided that their stations are
operated in accordance with the Rules.6 Section 95.407 of the
Rules identifies the frequencies on which CB stations may
operate.7 Section 95.409 of the Rules prohibits CB operators
from making any internal modifications to a certified CB
transmitter and states that any such modification cancels the
certification and voids the authority to operate.8 Section
95.413(a)(4) prohibits one-way communications, except for
emergency communications, traveler assistance, brief tests
(radio checks), or voice paging.9 On July 6, 2005, using
modified CB equipment, Fricke operated his CB station on an
unauthorized frequency and transmitted a one-way communication
in the form of a constant carrier. Because Fricke operated his
CB station inconsistent with the Rules, he was not authorized
to operate pursuant to Section 95.404 of the Rules.
Accordingly, based on the evidence before us, we find that
Fricke apparently willfully violated Section 301 of the Act by
operating a CB radio station without Commission authorization.
5. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amount for operation without an instrument of authorization is
$10,000.10 In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.11 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Fricke is apparently liable for
a ($10,000) forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, Gene A. Fricke is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violation of Section 301 of the Act by
operating his Citizens Band radio station without Commission
authorization.12
7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Commission's Rules within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, Gene A.
Fricke SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
8. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251.
Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
9. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, Boston Office, 1 Batterymarch Park, Quincy, MA, 02169
and must include the NAL/Acct. No. referenced in the caption.
10. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability to
pay unless the petitioner submits: (1) federal tax returns for
the most recent three-year period; (2) financial statements
prepared according to generally accepted accounting practices
("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to
the financial documentation submitted.
11. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.13
12. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Gene A.
Fricke at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis Loria
District Director
Boston Office
Northeast Region
Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 47 U.S.C. § 503(b).
3 Fricke's CB station has been the subject of prior FCC
investigations. On December 1, 2004, the Boston Office issued a
Citation to Mr. Fricke for violating Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules by advertising for sale non-
certified CB transceivers. On December 3, 2004, in response to
complaints of continuous operation on CB Channel 19, the Boston
Office issued a warning letter to Mr. Fricke for failure to limit
the length of communications as required under Section 95.416 of
the Rules, and imposed restrictions on the operation of any base
or mobile transmitter from his property between the hours of 6
a.m. and 10 a.m. and the hours of 2 p.m. and 10 p.m.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term 'willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
5 47 U.S.C. § 301.
6 47 C.F.R. § 95.404.
7 47 C.F.R. § 95.407.
8 47 C.F.R. § 95.409. Section 95.409 cites to Section 95.425 of
the Rules, which states that ``[y]ou must not operate a CB
transmitter which has been modified by anyone in any way,
including modification to operate on unauthorized frequencies or
with illegal power.'' See 47 C.F.R. § 95.425(c). Certified CB
transmitters are capable of operating only on authorized CB
frequencies. That is, only CB transmitters that have been
modified are capable of transmitting on unauthorized CB
frequencies.
9 47 C.F.R. § 95.413(a)(4).
1012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1147 U.S.C. § 503(b)(2)(D).
12 47 C.F.R. §§ 0.111, 0.311, 0.314, and 1.80.
13See 47 C.F.R. § 1.1914.